Hamilton v. City of Canon City, et al

Filing 4

ORDER Directing Plaintiff to Cure Deficiencies and File Amended Complaint that Complies with Rule 8, by Magistrate Judge Craig B. Shaffer on 7/28/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02070-BNB
(The above civil action number must appear on all future papers
sent to the Court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
JOSEPH DEAN HAMILTON,
Plaintiff,
v.
STATE OF COLORADO,
THOMAS LADOUX, District Attorney,
MICHELL SAGE, Detective ICAC,
CAÑON CITY POLICE DEPARTMENT,
LOU ARCHULETTA, Warden,
JOHN W. SUTHERS, State Attorney General,
Defendants.

ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES AND
FILE AMENDED COMPLAINT THAT COMPLIES WITH RULE 8

Plaintiff, Joseph Dean Hamilton, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Fremont Correctional
Facility in Cañon City, Colorado. Mr. Hamilton initiated this action by filing pro se a
Complaint titled “Res-Judicata” (ECF No. 1). As part of the Court’s review pursuant to
D.C.COLO.LCivR 8.1(b), the Court has determined that the document is deficient as
described in this order. Plaintiff will be directed to cure the following if he wishes to
pursue his claims. Any papers that Plaintiff files in response to this order must include
the civil action number noted above in the caption of this order.
28 U.S.C. § 1915 Motion and Affidavit:

(1)

X

(2)
(3)

X

(4)
(5)
(6)
(7)
(8)
(9)
(10)

X

is not submitted (must use and complete all pages of the court’s current
form revised 10/01/12 with Authorization and Certificate of Prison Official)
is missing affidavit
is missing certified copy of prisoner's trust fund statement for the 6-month
period immediately preceding this filing
is missing certificate showing current balance in prison account
is missing required financial information
is missing an original signature by the prisoner
is not on proper form
names in caption do not match names in caption of complaint, petition or
habeas application
An original and a copy have not been received by the Court.
Only an original has been received.
other: Plaintiff may pay $400.00 (the $350.00 filing fee plus a $50.00
administrative fee) in lieu of filing a § 1915 Motion and Affidavit and a
certified copy of his six months’ trust fund statement.

Complaint, Petition or Application:
(11)
is not submitted
(12)
X
is not on proper form (must use the Court’s current form)
is missing an original signature by the prisoner
(13)
(14)
is missing page no.
(15)
uses et al. instead of listing all parties in caption
(16)
An original and a copy have not been received by the Court. Only an
original has been received.
Sufficient copies to serve each defendant/respondent have not been
(17)
received by the Court.
(18)
names in caption do not match names in text
(19)
X
other: Fails to request any relief. Must provide full street address for each
named defendant.
The Court must construe the Complaint liberally because Mr. Hamilton is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Mr. Hamilton will be ordered to file an amended Prisoner Complaint if he wishes
to pursue his claims in this action.
Mr. Hamilton appears to be attacking his state court conviction in Fremont
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County court case No. 08CR122 pursuant to 42 U.S.C. § 1983, although he cites
instead to Rule 60(b) of the Federal Rules of Civil Procedure. Otherwise, his Complaint
is unintelligible. He fails to make a specific request for relief.
Mr. Hamilton may challenge the conditions of his confinement in the instant
action. To the extent he is seeking relief with respect to claims challenging the validity
of his current incarceration, the claims are barred by the rule in Heck v. Humphrey, 512
U.S. 477 (1994). In Heck, the Supreme Court held that if a judgment for damages
favorable to a prisoner in a § 1983 action necessarily would imply the invalidity of his or
her criminal conviction or sentence, the § 1983 action does not arise until the conviction
or sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by an authorized state tribunal, or called into question by the issuance of a
federal habeas writ. See Heck, 512 U.S. at 486-87.
However, a civil rights action filed by a state prisoner “is barred (absent prior
invalidation) – no matter the relief sought (damages or equitable relief), no matter the
target of the prisoner’s suit (state conduct leading to conviction or internal prison
proceedings) – if success in that action would necessarily demonstrate the invalidity of
confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Mr.
Hamilton does not allege that he has invalidated any convictions or sentences that
pertain to his current confinement and its duration.
To the extent Mr. Hamilton may seek to challenge his criminal conviction or
obtain his release from incarceration, his sole federal remedy is a writ of habeas corpus,
after he has exhausted state court remedies. See Preiser v. Rodriguez, 411 U.S. 475,
504 (1973). The Court will not consider the merits of any habeas corpus claims in this
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civil rights action.
If no final judgment had been entered in the state-court action, this Court still
must abstain from exercising jurisdiction over claims asking the Court to intervene in
ongoing state proceedings pursuant to Younger v. Harris, 401 U.S. 37, 44 (1971).
Mr. Hamilton may not sue the Cañon City Police Department. The Cañon City
Police Department is not a separate entity from Cañon City, and, therefore, is not a
person under § 1983. See Stump v. Gates, 777 F. Supp. 808, 814-16 (D. Colo. 1991),
aff'd, 986 F.2d 1429 (10th Cir. 1993). Any claims asserted against the police
department must be considered as asserted against Cañon City.
In addition, municipalities, such as Cañon City, and municipal entities are not
liable under § 1983 solely because their employees inflict injury on a plaintiff. Monell v.
New York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of
Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). To establish liability, a plaintiff must
show that a policy or custom exists and that there is a direct causal link between the
policy or custom and the injury alleged. City of Canton, Ohio v. Harris, 489 U.S. 378,
385 (1989). Plaintiff cannot state a claim for relief against Cañon City under § 1983
merely by pointing to isolated incidents. See Monell, 436 U.S. at 694.
Mr. Hamilton also may not sue the State of Colorado. The State of Colorado and
its entities are protected by Eleventh Amendment immunity. See Will v. Michigan Dep't
of State Police, 491 U.S. 58, 66 (1989); Meade v. Grubbs, 841 F.2d 1512, 1525-26
(10th Cir. 1988). “It is well established that absent an unmistakable waiver by the state
of its Eleventh Amendment immunity, or an unmistakable abrogation of such immunity
by Congress, the amendment provides absolute immunity from suit in federal courts for
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states and their agencies.” Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584,
588 (10th Cir. 1994), overrruled on other grounds by Ellis v. University of Kansas Med.
Ctr., 163 F.3d 1186 (10th Cir. 1998). The State of Colorado has not waived its Eleventh
Amendment immunity, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir.
1988), and congressional enactment of § 1983 did not abrogate Eleventh Amendment
immunity, see Quern v. Jordan, 440 U.S. 332, 340-345 (1979). The Eleventh
Amendment applies to all suits against the state and its agencies, regardless of the
relief sought. See Higganbotham v. Okla. Transp. Comm'n, 328 F.3d 638, 644 (10th
Cir. 2003).
Mr. Hamilton also cannot pursue claims against Thomas LaDoux, a state district
attorney. State prosecutors are entitled to absolute immunity in § 1983 suits for
activities within the scope of their prosecutorial duties. See Imbler v. Pachtman, 424
U.S. 409, 420-24 (1976); see also Butz v. Economou, 438 U.S. 478, 504 (1978).
Initiating and pursuing a criminal prosecution are acts are “‘intimately associated with
the judicial process’” Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir. 1990) (quoting
Imbler, 424 U.S. at 430). The district attorney is immune from liability for any claims
that he initiated a baseless prosecution against Mr. Hamilton.
Mr. Hamilton fails to allege the reason or reasons he is suing any of the named
Defendants. In order to state a claim in federal court, Mr. Hamilton “must explain what
each defendant did to him or her; when the defendant did it; how the defendant’s action
harmed him or her; and, what specific legal right the plaintiff believes the defendant
violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007). The general rule that pro se pleadings must be construed liberally has limits and
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“the court cannot take on the responsibility of serving as the litigant’s attorney in
constructing arguments and searching the record.” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Section 1983 “provides a federal cause of action against any person who, acting
under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526
U.S. 286, 290 (1999); see also Wyatt v. Cole, 504 U.S. 158, 161 (1992) (“[T]he purpose
of § 1983 is to deter state actors from using the badge of their authority to deprive
individuals of their federally guaranteed rights and to provide relief to victims if such
deterrence fails.”). Therefore, Mr. Hamilton should name as defendants in his amended
Prisoner Complaint only those persons that he contends actually violated his federal
constitutional rights.
Personal participation is an essential allegation in a civil rights action. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal
participation, Mr. Hamilton must show that each defendant caused the deprivation of a
federal right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). There must be an
affirmative link between the alleged constitutional violation and each defendant’s
participation, control or direction, or failure to supervise. See Butler v. City of Norman,
992 F.2d 1053, 1055 (10th Cir. 1993). With respect to supervisory officials, a defendant
may not be held liable for the unconstitutional conduct of his or her subordinates on a
theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Furthermore,
when a plaintiff sues an official under Bivens [v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 410 (1971),] or § 1983 for conduct “arising from his
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or her superintendent responsibilities,” the plaintiff must
plausibly plead and eventually prove not only that the
official’s subordinates violated the Constitution, but that the
official by virtue of his own conduct and state of mind did so
as well.
See Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556
U.S. at 677). Therefore, in order to succeed in a § 1983 suit against a government
official for conduct that arises out of his or her supervisory responsibilities, a plaintiff
must allege and demonstrate that: “(1) the defendant promulgated, created,
implemented or possessed responsibility for the continued operation of a policy that (2)
caused the complained of constitutional harm, and (3) acted with the state of mind
required to establish the alleged constitutional deprivation.” Id. at 1199.
Mr. Hamilton may use fictitious names, such as “John or Jane Doe,” if he does
not know the real names of the individuals who allegedly violated his rights. However, if
Mr. Hamilton uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
The amended Prisoner Complaint Mr. Hamilton will be directed to file must
comply with the pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure. The twin purposes of a complaint are to give the opposing parties fair notice
of the basis for the claims against them so that they may respond and to allow the court
to conclude that the allegations, if proven, show that the plaintiff is entitled to relief. See
Monument Builders of Greater Kansas City, Inc. v. American Cemetery Ass’n of
Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989). The requirements of Fed. R. Civ. P. 8
are designed to meet these purposes. See TV Communications Network, Inc. v. ESPN,
Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff’d, 964 F.2d 1022 (10th Cir. 1992).
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Specifically, Rule 8(a) provides that a complaint “must contain (1) a short and plain
statement of the grounds for the court’s jurisdiction, . . . (2) a short and plain statement
of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief
sought.” The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that
“[e]ach allegation must be simple, concise, and direct.” Taken together, Rules 8(a) and
(d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading
rules. Prolix, vague, or unintelligible pleadings violate Rule 8.
Accordingly, it is
ORDERED that Plaintiff, Joseph Dean Hamilton, cure the designated deficiencies
and file an amended Prisoner Complaint that sues the proper parties and complies with
Rule 8 of the Federal Rules of Civil Procedure within thirty (30) days from the date of
this order. Any papers that Plaintiff files in response to this order must include the civil
action number on this order. It is
FURTHER ORDERED that Plaintiff shall obtain (with the assistance of his case
manager or the facility’s legal assistant) the Court-approved forms for filing a Prisoner’s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and Prisoner
Complaint, along with the applicable instructions, at www.cod.uscourts.gov, and shall
use all pages of those forms in curing the designated deficiencies and filing an
amended Prisoner Complaint. It is
FURTHER ORDERED that, if Plaintiff fails to cure the designated deficiencies or
file an amended Prisoner Complaint as directed within thirty days from the date of
this order, the Complaint and action may be dismissed without further notice.

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DATED July 28, 2014, at Denver, Colorado.
BY THE COURT:

s/Craig B. Shaffer
CRAIG B. SHAFFER
United States Magistrate Judge

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